The main legal point established in the judgment is that the requirement of 'good cause' for setting aside an ex parte order should be interpreted widely, and the rescission of contract under Section 28 of the Specific Relief Act, 1963 does not confer an indefeasible right.

JUDGMENT

Sudhir Mittal, J. - The petitioners are the judgment-debtors. They have approached this Court through this revision petition because the Executing Court has refused to recall the order by which they were proceeded against ex parte.

2. Respondent No. 1-plaintiff had filed a suit for possession by way of specific performance of agreement to sell dated 25.12.2010 in respect of land measuring 40 kanal 11 marlas. During the pendency of the suit, the parties reached an amicable settlement and based thereupon compromise decree dated 10.09.2015 was passed. One of the terms of the decree was that sale deed was to be executed on or before 15.05.2016 and in case, the remaining consideration amounting to Rs.6.5 lacs was not deposited by then, the earnest money would stand forfeited and theagreement would stand cancelled. According to the petitioners-JDs, the balance amount was deposited on 08.07.2016. Execution petition was preferred on 29.11.2018 and the JDs were proceeded against ex parte vide order dated 08.03.2019. Application dated 21.10.2019 for setting aside the ex parte order was filed but the same has been dismissed vide impugned order dated 05.10.2021. The Executing Court has found that service had been effected through an adult male member of the family i.e. husband of J.D. No.l who is also the son of deceased Gopal Kaur (JD No.2) and thus, no valid ground existed for recall of the order proceeding ex parte against the JDs. They were, however, permitted to join proceedings from the stage at which the proceedings stood on the date of passing of the order.

3. It appears that meanwhile Gopal Kaur-JD No.2 passed away on 04.12.2019 and vide order dated 01.03.2021 the Executing Court directed warrants of possession to be kept in abeyance till the decision of the application filed for setting aside the order by which the JDs had been proceeded against ex parte.

4. Learned counsel for the petitioners has argued that impugned order dated 05.10.2021 is illegal and deserved to be set aside. According to him, Order 5 Rule 15 CPC has been misconstrued by the Executing Court. Service through an adult member of the family is permissible only if there is no likelihood of the defendant being found at the residence within a reasonable time. In this case, on the first date for service of notice, the JDs have been proceeded against ex parte and thus, there is no determination of likelihood of not being found. Reliance hasbeen placed upon Kishore Kumar Arora vs. Harvinder Singh and others, 2011 (30) RCR (Civil) 250 and a Division Bench judgment of this Court in Charanjit Singh Mann vs. Neelam Mann, 2006(2) RCR (Civil) 497.

5. A perusal of the Division Bench judgment of this Court in Charanjit Singh (supra) shows that effecting service through an adult member of the family is an accepted mode of service provided the party resides at that address and there is no likelihood of his being found within a reasonable time. There is no dispute that the JDs resided at the address mentioned in the summons. Thus, the only point to be examined is whether the Executing Court has taken into consideration the likelihood of the JDs not being found within a reasonable time. The case of the petitioners is that it has not done so but they have not attached the service report. Had they done so, it could have been seen whether there was likelihood of the J.D's being found within a reasonable time. Thus, it is difficult to hold that the Executing Court failed to construe Order 5 Rule 15 CPC properly. In Charanjit Singh (supra), the report of the Process Server was on record and it stated that the adult member of the family had informed him that the party had gone abroad after re-marrying. Based thereupon it was held that service had been validly effected as the party could not be expected to be found within a reasonable time. The argument is thus rejected.

6. The next argument raised is based on Order 9 Rule 7 CPC. It has been submitted that where a party has been pro